Decades of empirical studies reveal that although most Americans intend to make a will, surprisingly few execute one. Most individuals die without a will, allowing the default rules of intestacy to govern the disposition of property at death. This is problematic because most Americans cannot correctly identify their intestate heirs, so the absence of a will creates the possibility that default rules may fail to carry out the decedent's probable intent. Among many possible adverse consequences, unintended intestacy can cause financial hardship, uncertainty, and frustrated expectations for the decedent's intended beneficiaries. The default rules of intestacy are also structurally unsuitable for the large and growing population of nontraditional families because heirship is limited to individuals related to the decedent by marriage, blood, or legal adoption.

This chapter explores the possibility that complexities embedded in the will-making process itself are at least partly responsible for the high rate of unintended intestacy. Unlike other acts of legal significance, such as entering into a marriage or consumer contract, the will-making process is unfamiliar to most individuals and requires legal drafting and compliance with testamentary formalities. Negative public perceptions about the will-making process discourage lay testation, and many individuals are reluctant to deal with a lawyer for reasons of cost or privacy. Those perceptions most likely arise from the law's historic hostility toward homemade wills and self-representation in the estate-planning context. For more than a century, courts have required strict compliance with statutorily imposed formalities for executing a will; failure to comply, even in cases of harmless error, led to the will's rejection from probate.